IN THE CASE OF:	

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080006423 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his records be corrected to show he transferred to the Retired Reserve on 28 October 1998.

2.  The applicant states he requested transfer to the Retired Reserve on 6 June 1998.  He believed that this had occurred because he was issued an Identification (ID) Card that shows his status as retired Reserve.  It was his intent to transfer to the Retired Reserve and still be subject to recall, if needed, not to be discharged.

3.  The applicant provides copies of a 1999 DD Form 2 (Retired Reserve) (Identification Card) and an 18 June 1998 DA Form 4651-R (Request for Reserve Component Assignment or Attachment), in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not present any additional arguments, contentions, or documentation beyond that set forth in the application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of 
justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant entered active duty on 31 March 1970.  He was honorably released from active duty and transferred to the United State Army Reserve (USAR) Control Group (Individual Ready Reserve) on 3 March 1972.  

3.  He completed his period of obligated service and was honorably discharged on 4 March 1973.

4.  On 16 October 1976 he enlisted in the USAR (Troop Program Unit), attaining the rank of master sergeant. 

5.  On 7 August 1997, the applicant completed a 29-day period of active duty for training that led to his provisional appointment as a warrant officer.  His DD Form 214 shows he was discharged for the purpose of accepting an appointment as a warrant officer one (WO1).

6.  An 8 August 1997, Headquarters, United States Army Aviation Center and Fort Rucker, Alabama memorandum notified the applicant he had been appointed a Reserve warrant officer effective the date of his acceptance and completion of his Oath of Office.  The memorandum notified him that he had two years to complete the required Warrant Officer Basic Course (WOBC) or he would be subject to discharge. 

7.  On 18 June 1998, the applicant submitted a DA Form 4651-R requesting a voluntary transfer to the USAR Control Group (Retired).  His unit commander signed the request and forwarded it for final action.

8.  A 24 September 1998 Army Reserve Personnel Command, St. Louis, Missouri memorandum to the Commander, USARC, Fort McPherson, Georgia, states that the applicant was removed from the Warrant Officer Candidate Program, effective 24 September 1998, for refusal to attend the WOBC.  The memorandum requested that the applicant's appointment to WO1 be revoked for failure to comply with the terms of that appointment agreement.  It was also stated that the applicant was subject to discharge in accordance with his commissioning agreement and Army Regulation 135-175, paragraph 4-4b(8).  


9.  The applicant’s record contains no documentation indicating that his appointment was revoked.  Further, there is no documentation to indicate that the applicant had a contractual agreement that would allow for an automatic reversion to his enlisted status in the event of disenrollment from the WO training program.

10.  Headquarters, U. S. Army Reserve Command, Fort McPherson Orders
98-271-003, dated 28 September 1998, honorably discharged the applicant from the USAR in the rank and grade of WO1 under Army Regulation 135-175. 

11.  A US Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 15 September 2008, shows the applicant had 23 years and 17 days of qualifying service for retirement.  He had completed 20 qualifying years of service for Reserve retired pay at age 60 on 15 October 1994.

12.  The applicant will attain age 60 on 14 December 2010.

13.  The applicant was issued a DD Form 2 (Retired Reserve) ID card listing his rank and pay grade as WO1/W1.  Over the Service shield is printed “U. S. Army Reserve Retired.”  

14.  Army Regulation 600-8-14 (Identification Cards For Members Of The Uniformed Services) states, in pertinent part, that a DD Form 2 (Reserve Retired) will be issued to members entitled to retired pay at age 60 who have not yet attained age 60.  For former members (discharged) entitled to retired pay at age 60 who have not yet attained age 60, the status “Former Member” will be reflected above the Service shield.

15.  Army Regulation 135-175 (Separation of Officers) states that officers appointed under special programs prior to completing their eligibility requirements for the appointment and who subsequently failed to complete these requirements may be discharged.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly discharged following his removal from the warrant officer program.  Since he was serving as a WO1 at the time of his discharge, he was discharged in this grade.

2.  Based on longevity of service, the applicant qualified for transfer to the Retired Reserve at the time he submitted his request in June 1998.  However, at that time, he was enrolled in a warrant officer program for which he had not yet completed the requirements to retain his appointment.

3.  Without completion of the requirements to retain his appointment as a WO1 he would not qualify to transfer to the Retired Reserve in that status or issuance of an ID Card in that status.

4.  Additionally, the applicant did not qualify for transfer to the Retired Reserve as a master sergeant since he had been discharged from his enlisted status when he accepted appointment as a WO1.  There is no indication he still held any enlisted status at the time he requested transfer to the Retired Reserve.

5.  Without a reversion to enlisted status clause in his appointment contract, the applicant would not have been eligible to transfer to the Retired Reserve in that status either.

6.  The only option available was to discharge him as a WO1 based on his failure to complete the required educational requirements to retain his commission.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X______________
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080006423



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ABCMR Record of Proceedings (cont)                                         AR20080006423



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